Presidential power

When is a recess really a recess?

IN JANUARY of last year the Senate appeared to go on break. Nearly all of its members went home and no real work was done. But a single senator arrived in the chamber every so often to bang the gavel and declare "pro forma" sessions. This time it was Republicans doing the dirty work of obstruction, but before them it was Democrats. Barack Obama had seen it happen when he was in the Senate and George Bush in the White House. But with an elevated perspective President Obama decided it was a sham, claimed the Senate had adjourned, and installed three members of the National Labor Relations Board (NLRB) via recess appointments.

Today a three-judge panel of a federal appeals court handed the president a powerful rebuke, saying he overstepped his authority. On its narrowest point, the ruling was straightforward and logical. Allowing the president to decide when the Senate was in recess would give him "free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction,” wrote Judge David Sentelle.

But the judges went further, defining a recess as only the period in between formal sessions of Congress, which generally occurs once a year. The president could not use holiday breaks or seasonal vacations as opportunities to appoint nominees who faced intractable opposition, they said. Two of the three judges added that only positions which come open during the newly-defined recess could be filled during that time.

"Novel and unprecedented” is how Jay Carney, the White House spokesman, described the decision. The judges might agree. They acknowledged that parts of their opinion conflicted with previous rulings on recess appointments. This particular case dealt with a bottling company that claimed an unfavourable NLRB ruling was invalid. Similar cases working their way through the courts will be watched closely by the administration as it decides whether to appeal the decision. The issue may ultimately end up before the Supreme Court.

It is staggering to consider that some 200 years of recess appointments have been called into question. And it is unclear what that might mean for all of the decisions taken by officials and judges appointed in that manner. For now the focus is on Mr Obama's contentious NLRB appointees, as well as on Richard Cordray, who was given a recess appointment to head the newly established Consumer Financial Protection Bureau (CFPB). Without the president's nominees, the NLRB would not have had a quorum over the past year, meaning all of its decisions could be declared invalid (as one decision was in this case). Similarly, much of the CFPB's authority could only vest once a director had been appointed. Its activity to this point may now be challenged.

Mr Cordray, in particular, finds himself in a difficult spot. On January 24th Mr Obama formally nominated him to his current post, which means he is at the centre of two battles—a political one over what he might do in the future, and a legal one over the things he did in the past.

Right, when a Democrat does it, that means it is not unconstitutional.
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"[T]he Department of Justice (“DOJ”), on behalf of the United States, now asserts that “the Recess” means any “recess” in the colloquial sense – i.e., any remission or suspension of Senate business or procedure, such that the President may make a “recess” appointment whenever the Senate takes any intra-session break – e.g., each evening, or for the weekend.... [T]he Department’s novel legal interpretation break with over 200 years of Executive Branch practice under, and DOJ interpretations of, the Recess Appointments Clause.... History is not the only obstacle to DOJ’s novel interpretation. Its reading also cannot be reconciled with the constitutional language or structure, or with the manifest and acknowledged purposes of the Recess Appointments Clause. Indeed, DOJ’s position would permit the President to circumvent the Senate’s constitutionally assigned function of advice and consent, and would thereby vitiate the Framers’ determination to “divid[e] the power to appoint the principal federal officers... between the Executive and Legislative branches.”"
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- Amicus brief of Senator Ted Kennedy opposing Bush's recess appointment of William Pryor.

Maybe someone should suggest that Obama go back to school and take some refresher courses on constitutional law. Obama has had a bunch of rulings by lower courts and supreme courts (many 9-0) saying that what he has done is unconstitutional. Maybe he too constitutional law in order to try to circumvent it. I think the courts are getting pissed at his power grabs, and now they made him pay by reinterpreting what a session is to prevent him from doing this kind of thing in the future.

Say what you will about Obama, but he has broken more constitutional rules than any president I remember. And when the Republicans take power again someday, the Dems are going to regret the day they let Obama do what he is doing today.

"It is staggering to consider that 200 years of recess appointments have been called into question."
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Okay, now this is where the Right makes it's usual complaint against activist judges.
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Go ahead, we're ready. Anytime now. One, two, three, go! Don't wait for us. Go right ahead.
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Hello?

Throughout history, the meaning of holy books and political documents have been debated by those "who know what was meant" and those "who know what was said". Innumerable wars and deaths have followed. Could we agree that words and language are at best an imperfect medium used to express human thought? For those who claim to have the power to know what was in the minds of people who have long since departed, I suggest they use their unique skills more profitably; by finding lost treasure, for example.

I have the greatest respect for the framers of the US Constitution. They had the wisdom to frame a document based on principals, which could govern a land racked with religious, political and cultural differences. It is a pity the same cannot be said of our present leaders. I do not believe the fathers of our country claimed to be omnipresent demigods, who could peer through the fabric of time to devise a perfect and everlasting way of governing a nation, but to hear these modern day judicial and political prophets, they must have been.

Regarding recess appointments, they were clearly meant to allow the operation of government at a time when time and distance was an issue. Today, although reality has changed, mindsets have not, what should be a simple exercise in rational thinking about the principals, becomes a debate of semantics and conjecture. Thus it has been is and will be, unfortunately.

Not a single person who wants the Obama appointments thinks it's unconstitutional and not a single person who doesn't want the appointments thinks it's constitutional. Amazing how it works out that way, isn't it? People should pick a political philosophy before they pick a party.
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I believe the president should be allowed to appoint anyone he chooses within the executive branch. If Congress doesn't like it, they can remove the appointee or the president. For the record, I thought Elizabeth Warren should've been appointed consumer czar, as much as I despise her.
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"Recess" in the Constitution isn't defined. I doubt anyone at the time thought recesses would be scheduled for partisan purposes. They probably though Congress would schedule recesses so reps can take their four day journey back home to see their families. And the same time, they probably thought recess appointments would be used as an emergency power to keep the government running in the meantime, not to circumvent Congress. Today, there's little need for extended recesses. Unfortunately, airplanes and telecommunications don't amend the Constitution and there's no chance of amending it properly. So the choice is between allowing Congress to block nominees as was probably intended or using technicalities to frustrate the purpose of the Constitution.

Speaking of power grabs, can we challenge the GOP's disgraceful use of the filibuster? The GOP has blocked so many appointments over the past four years that this seems like a joke. The focus should be on GOP douche-bags who never want to compromise with the President, nor let him do his job. GOOD Americans see this this cynical game these fuckheads continue to play. Down with the GOP - Destroy them.

This article is misleading. There has not been 200 years of recess appointments within a session. Declaring that a chamber is in recess within a session is a relatively recent development. It isn't like people are just figuring this out after 2 centuries of federal democracy.

If the Recess Appointments Clause is going to be read so strictly, perhaps the Advice & Consent Clause should be construed so that, if Congress has not said yea or nay within a reasonable time, silence implies consent.

I don't think Miguel Estrada should've been left hanging for 2 years, and I don't think the D.C. Circuit's ruling is good law. Let's hope the Supreme Court follows generations of practice and the precedents of the 11th Circuit and other courts.

Sooooo, the Judges have essentially said it's ok to just not run the country. Nobody minds if there's no one at the wheel... we didn't elect people who legislated those positions into being for a purpose at all...

As a taxpayer I feel cheated by this. It would be more effective to allow recess appointments that the senate could later revoke. But if you make it to where the president can appoint whoever he wants without regard to the senate as long as they leave during a recess, then that will become the new norm.

What the court is doing is voiding the work arounds that have allowed the government to continue functioning even though the people in Congress are a bunch of scumbags.

"It would be more effective to allow recess appointments that the senate could later revoke."

Or allow temporary appointments to stay in place until Presidential nominees at least come up for a vote.

Look to the big picture. You have a generation in charge that doesn't care about their country, their community, their company, their children, and does not even have the discipline, for the most part, to put aside their current urges for the good of their own personal futures.

The Framers included the Recess Appointments Clause to provide the President the ability to fill up official vacancies when the Senate, having absconded from its chambers for more than three days, was then unable or unwilling to act. The Senate’s only recourse is to timely take up and act on the President’s next permanent appointee for the same position. The DC Circuit Court’s ruling to the contrary is a manifest abuse of its discretion and shall be readily overturned by the Supreme Court. Why?

In this case, Noel Canning v. NLRB (D.C. Cir. 2013), the Court ruled that 3 of 5 NRLB members were not then, in fact, duly authorized to serve on the Board, having been improperly named as recess appointments when, in fact, the Senate was not in recess and, in any event, when the vacancies had not occurred first during any such Senate recess.

The Court based its ruling on its very narrow, novel and unprecedented reading of Art. 2.2.3 of the US Constitution, the latter which provides:

“The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The Court interpreted the phrase, “the Recess,” by comparison to the further term, “adjournment”, to refer solely to the regularly recurring inactivity in the Senate which occurs biennially in January just before the seating of the next Congress and, then, one calendar year later, after the intervening Christmas break; but it abjured any other such official hiatus which might intervene, say, during any other prolonged adjournment of the Senate.

The Court, here, failed to follow its own rules: The Framers could easily have written, “during the recess of the Senate for the year-end holidays, but not any other agreed adjournment,” if they had wished to exclude the possibility of the President making recess appointments during any other such official hiatus. But the Framers did not do so.

Further, the Court opined that, without its present interpretation, there would be no clear means of preventing the President from making recess appointments at his every whim and caprice, e.g., whenever the Senate “broke for lunch”. Amazingly, in this connection, the Court held that Art. 1.5 of the Constitution has no bearing on the issue. I beg to differ.

Art. 1.5.4 of the Constitution sets forth:

“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

Now, the term “session” corresponds to the fact of the members physically sitting together in chambers for the purpose of conducting their work. (See, etymonline.com: “session: late 14c., ‘periodical sitting of a court,’ from Old French session, from Latin sessionem (nom. sessio), the ‘act of sitting’). Similarly, the term “adjourn” means to fix a day at which to reconvene (ibid, “adjourn: early 14c., ajournen, ‘assign a day’ for convening or reconvening, from Old French ajourner (12c.) ‘meet’ at an appointed time, from the phrase à jorn ‘to a stated day’.”)

By clear implication, the Senate remains “in session” when it is physically sitting together in chambers or, in the alternative, when it has agreed to return to chambers upon a date certain for the purpose of resuming its regular business and from a short distance.

By contrast, the Senate is “in recess “whenever it is not conducting its regular business and is not operating under any regularly agreed adjournment from a short distance. (See, ibid, etymonline.com: “recess (n): 1530s, the ‘act of receding,’ from Latin recessus, ‘a going back, retreat,’ from recessum, pp. of recedere ‘to recede’. The meaning ‘hidden or remote part’ first recorded 1610s; that of ‘period of stopping from usual work’ is from 1620s, probably from parliamentary notion of ‘recessing’ into private chambers’.”

By direct implication, a “recess of the Senate” is a period of more than three days in which the Senate has agreed not to be conducting its normal business and is, then, “away” from chambers.

On the merits, the Senate had agreed just so that it would not conduct any business between Dec. 20, 2011 and Jan. 23, 2012, a period of 25 days, inclusive. While it reconvened momentarily on Jan. 3 and on at least one prior day, it was by its own agreement not conducting any regular business on Jan. 4, and was not expected to return to chambers until at least Jan. 23. Mr. Obama made the three subject NLRB appointments on Jan. 4, 2012, when the Senate was officially “away”. Thus, these were properly made “during the Recess of the Senate”. The Court’s holding to the contrary (sic) is a manifest abuse of its discretion.

"True libertarians view activist judges are those that reinterpret the constitution in ways that expand power of government to new levels not explicitly states...The fact you don't understand the basis of the argument against activist judges is telling."
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I would argue that what's telling is that you don't appear to be familiar with Sandra Day O'Connor's famous quote -
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"Activist judges are those who make decisions you don't like."